Armstrong v. Ryan

Before
the Court is Petitioner Shad Armstrong's motion for an
order staying and holding in abeyance these habeas
proceedings. (Doc. 28.) Armstrong is an Arizona death-row
prisoner. He filed a habeas petition on July 1, 2016. (Doc.
20.) In the pending motion he seeks a stay so that he can
return to state court and exhaust Claims 1(A),
4(A)(4)(a)-(b), 5(B), and 6(B). (Doc. 28.) He also seeks
permission for his federal habeas counsel to appear on his
behalf in state court. Respondents filed a response in
opposition to the requested stay, and Petitioner filed a
reply. (Docs. 32, 40.) For the reasons set forth below, the
motion is denied.

BACKGROUND

In
March 2000, a Pima County jury convicted Petitioner of
murdering, and conspiring to murder, his sister and her
fiancé. The trial judge imposed death sentences for
each murder. In 2006, following the Supreme Court's
decision in Ring v. Arizona, 536 U.S. 584 (2002), a
jury resentenced Petitioner to death for each murder. The
Arizona Supreme Court, in its opinion affirming the
convictions and sentences, set forth the following facts:

In 1996, Armstrong lived in Oklahoma with his girlfriend
Russette Medina and his sister Farrah. Armstrong and Farrah
burglarized a home in Texas. After Armstrong learned that
Oklahoma authorities were looking for him, he fled to Tucson
with Medina, Medina's daughter, and Farrah.

In Tucson, Farrah met [Frank] Williams. They became
romantically involved and moved into an apartment together.
Armstrong and Medina could not afford rent, so they moved in
with Williams and Farrah. Tensions grew in the apartment.
Medina and Armstrong frequently clashed, and Farrah was upset
with Armstrong because of an unpaid cable bill. In early
1998, Armstrong left the apartment and moved in with his
friend David Doogan. They lived in a trailer in Three Points,
Arizona, belonging to Doogan's father. Later, Medina, her
daughter, and another child fathered by Armstrong also moved
to the trailer in Three Points.

Meanwhile, Farrah and Williams visited Farrah's parents
in Oklahoma. They shared their plans to move there and get
married. Farrah discussed with her parents her need to
resolve her outstanding legal problems. After returning to
Tucson in early February, Farrah told Medina about her plans
to return to Oklahoma and turn herself over to authorities.
She also told Medina that in order to get favorable
treatment, she planned to tell the Oklahoma authorities where
Armstrong was located.

Medina told Armstrong about his sister's plans. He became
angry and worried that he would go to prison and that he and
Medina would lose custody of their children. Shortly after,
Armstrong discussed Farrah's plans with Doogan and the
pair started plotting to kill Farrah and Williams Several
days before the murders, Armstrong and Doogan dug a grave
near the trailer. On the afternoon of February 19, 1998,
Armstrong asked Farrah to come to Three Points because he had
money for the unpaid cable bill. He also asked her to bring
Williams because they needed his help with Doogan's car.
Armstrong had Medina and the children go to a different
trailer so the children would not see Farrah arrive. To
further prepare for the murders, Doogan and Armstrong hung
sheets on the walls and gathered plastic bags and a blanket
to cover the bodies. Armstrong also loaded a shotgun with
deer slugs.

Near dusk, Farrah and Williams drove up to the property,
Doogan opened the front door, and Armstrong hid with the
shotgun. As Farrah and Williams approached the trailer,
Doogan waved Armstrong off. Armstrong put down the gun and
greeted Farrah and Williams. Eventually everyone was in the
living room. Farrah sat on a couch, Williams sat on a
recliner, and Doogan sat on a chair opposite Williams. As
Doogan talked with Farrah and Williams, Armstrong retrieved
the shotgun. He returned to the living room and shot Williams
in the chest. Armstrong shot Farrah twice, first in the chest
and then in the head. He then shot Williams in the head.

Doogan and Armstrong disposed of the bodies. They placed a
plastic bag over Williams' head and wrapped the blanket
around both bodies. They could not easily carry the bodies,
so they dragged them outside and used a truck to pull the
blanket to the open grave. They pushed the bodies into the
hole and partially filled it with dirt. They then moved the
bloody couch and recliner into the truck bed. Armstrong
gathered some of the bloody sheets, put them in the hole with
the bodies, and finished filling the grave. By that time,
Medina had returned to the main trailer and soon they all got
in the truck and left Three Points. They dumped the furniture
in the desert and headed to Williams and Farrah's
apartment, where they took some electronic items and
Farrah's jewelry.

On the Sunday after the killings, Doogan's neighbor
called and asked Doogan if he knew where Armstrong was.
Doogan, following Armstrong's directions, said that
Armstrong had left for Michigan. Armstrong immediately
prepared to leave town. Armstrong, Medina, and the children
spent several months in Los Angeles before relocating to
Odessa, Texas. Despite these evasive maneuvers, an
investigation was already in progress. A friend of Williams
and Farrah called the police about their disappearance, and
authorities discovered the blood-stained furniture in the
desert. Doogan's father also contacted the police. The
police obtained a search warrant for the Three Points
property, discovered the bodies, and began searching for
Armstrong and Medina. Nearly a year after the killings,
authorities arrested them in Texas.

A
federal court may not “adjudicate mixed petitions for
habeas corpus, that is, petitions containing both exhausted
and unexhausted claims.” Rhines v. Weber, 544
U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S.
509, 518-519 (1982)). In Rhines, however, the
Supreme Court held that “a federal district court has
discretion to stay [a] mixed petition to allow the petitioner
to present his unexhausted claims to the state court in the
first instance, and then to return to federal court for
review of his perfected petition.” Id. at
271-72. This discretion is to be exercised under
“limited circumstances, ” id. at 277,
because “routinely granting stays would undermine the
AEDPA's goals of encouraging finality and streamlining
federal habeas proceedings.” Blake v. Baker,
745 F.3d 977, 981-82 (9th Cir. 2014).

The
stay-and-abeyance procedure is appropriate only where the
habeas petitioner has shown: (1) “good cause” for
the failure to exhaust, (2) the unexhausted claim is
“potentially meritorious, ” and (3) the
petitioner did not “engage[] in intentionally dilatory
litigation tactics.” Rhines, 544 U.S. at 278.
“[G]ood cause turns on whether the petitioner can set
forth a reasonable excuse, supported by sufficient evidence,
to justify” the failure to exhaust the claim in state
court. Blake, 745 F.3d at 982. However, “even
if a petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him a
stay when his unexhausted claims are plainly
meritless.” Rhines, 544 U.S. at 277.

2.
Exhaustion

The
Rhines procedure for staying a petition applies only
to so-called “mixed petitions, ” or petitions
containing both exhausted and unexhausted claims. See
King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009)
(explaining that the Rhines exception to the total
exhaustion rule carved out an exception allowing mixed
petitions to remain pending in federal court under limited
circumstances). A petitioner's claims are exhausted if
(1) the petitioner has fairly presented the federal claim to
the highest state court with jurisdiction to consider it or
(2) no state remedy remains available for the claim.
Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).
This latter form of exhaustion, where a petitioner has failed
to meet the State's procedural requirement for presenting
a claim in state court, is described as “technical
exhaustion” through procedural default. See Coleman
v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas
petitioner who has defaulted his federal claims in state
court meets the technical requirements for exhaustion; there
are no state remedies any longer ‘available' to
him.”); Smith v. Baldwin, 510 F.3d 1127, 1139
(9th Cir. 2007) (observing that if state court where
petitioner would be required to present the claims would find
the claims procedurally barred, petitioner has technically
exhausted the claims through procedural default).

DISCUSSION

Petitioner
seeks a stay so that he can return to state court and exhaust
the unexhausted claims presented in his habeas petition.
Though Petitioner asserts that all of the unexhausted claims
in his petition meet the requirements for receiving a stay
under Rhines, he addresses the specific criteria of
Rhines in support of his motion only as to four
claims from his petition. Accordingly, the Court addresses
Petitioner's motion only as to these claims, finding all
other arguments waived.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Respondents
assert that the four claims at issue are either actually or
technically exhausted, and thus Petitioner cannot obtain a
Rhines stay. See, e.g., White v.
Ryan, 2010 WL 1416054, *12 (D. Ariz. March 16, 2010)
(&ldquo;Because the Petition in this case contains claims
that are either actually or technically exhausted, it is not
a mixed Petition and Rhines does not apply.&rdquo;);
see also King, 564 F.3d at 1139-40 (explaining that
Rhines &ldquo;allows a district court to stay a
mixed petition”). Petitioner agrees that the
availability of a state remedy ...

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